Felicio Law Firm, Author at Felicio Law Firm

Apr 14

Parenting Arrangements in Light of COVID-19

By Felicio Law Firm Family Law

The onset of the COVID-19 pandemic has severely disrupted all our lives. Workplaces have shut en masse, as have entertainment venues, most shops and – other than for the children of emergency workers – schools as well.

We are all experiencing great uncertainty and anxiety as to how long these necessary arrangements will remain in place in order to stop the spread of the disease. One area obviously impacted by the pandemic is parenting arrangements as well as other family law matters. In this article we’ll provide a brief overview of the main issues involved and urge anyone with questions or concerns to get in touch with Felicio Law Firm for further assessment during this difficult time.

What is the impact on parenting arrangements?

The need for social distancing, the ending of interstate and international travel, the closure of many venues, the stopping of group sporting activities and the need for many individuals to self-isolate – all of these developments have had a sudden and serious impact on the arrangements parents have made when they have separated but share parenting of their children.

Maintaining a relationship with both parents is obviously crucial for children but in these dangerous times, this may now not be possible. Children who regularly travel interstate to spend time with one parent will obviously need to rely on FaceTime or Skype in order to maintain a relationship with the remotely located parent for the time being. For those parents who live geographically close to each other, regular handover spots such as shops and schools are likely now closed. Parents will need to think more laterally about handing over the children to the other parent at the usual time. Is there an alternative neutral location where you can practise social distancing and still hand over the children? If not, for the moment (unless there are family domestic violence or abuse issues involved), children should be delivered door-to-door between the separate houses of the parents.

As ever, it’s important to remember that under the Family Law Act 1975 the best interests of the child are paramount. This means that the impacts of the COVID-19 pandemic can’t be used by one parent as a “reasonable excuse” – the necessary legal hurdle – to limit or stop a child’s time with the other parent. Expert legal opinion should be sought if you plan to change the living or visiting arrangements of your children in relation to the other parent.

Making the decision to breach a parenting order because you believe the other parent does not maintain appropriate standards of hygiene, or does not practise social distancing when in custody of the children, may not qualify as a reasonable excuse for your breach. Seek legal advice if in doubt.

It’s also important to note that the virus causing the disease more severely impacts the elderly and so, if you need to continue working and your child’s school is closed, if at all possible it’s advisable to avoid having grandparents care for the children.

If temporary changes to the parenting arrangements are forced on you by COVID-19 restrictions, it’s sensible to record these in writing via text message, email or correspondence through lawyers so as to avoid a later ‘he said-she said’ contest.

Do child support payments continue?

Many people are losing their jobs or having their hours reduced as a result of the pandemic and will be unable to meet existing child support arrangements.

Speak to an experienced legal representative or the Federal government’s Child Support Agency if you think you will need your child support payment reassessed because your income has drastically changed. The advice is similar if there is a spousal maintenance order in place.

The status of court proceedings

If you have a family matter currently proceeding through the courts, expect delays while government measures to stop the spread of the disease are in place.

To date the Family Court of Australia and the Federal Circuit Court of Australia have announced it will continue to take new applications and hear matters that are already before it, but it has changed the priority given to certain cases and implemented social distancing measures within the court. Family reports will continue but all non-urgent parenting trials have been adjourned to a later date.

Communicate and adapt

The challenge posed by the pandemic is one of the most trying we’ve faced. For parents, keeping regular and honest communication between both parties on everything from observing the safety measures to monitoring the physical, emotional and psychological wellbeing of the children (and yourselves) is vital to getting through to the other side. Adopting a flexible and adaptive approach to parenting arrangements will also help in unprecedented times.

Felicio Law Firm had made a priority of getting across the parenting and family law issues presented by the COVID-19 pandemic. We have broad experience advising NSW and Queensland clients on these matters and offer a compassionate and considerate ear in these testing, difficult times. If you’re unsure about where you stand on sudden changes to parenting arrangements, call us Erina & Central Coast family lawyers now on (02) 4365 4249 or admin@feliciolawfirm.com.au

Apr 07

The Impact of COVID-19 for Employers

By Felicio Law Firm Employment

Workplaces around Australia are currently facing an unprecedented circumstance as the COVID-19 pandemic takes hold across the world. In a fluid situation, Federal and state governments have announced a rolling set of measures to try and prevent the spread of the virus as well as offset its terrible economic effects.

Employers have been placed in an extremely difficult situation for which many of them will be completely unprepared. Many businesses around the country have already temporarily closed or gone into ‘suspension’ as their workforces, their activities and their revenues are severely impacted by the pandemic.

This article attempts to provide some general guidance on some of things employers need to be aware of in dealing with this terrible event. Advice is basic in nature as the responses of our governments are ever-changing, reflecting the situation both here and overseas.

A reminder that it will always be helpful before you take any action to discuss your situation with legal professionals who have experience in employment law issues, such as Felicio Law Firm.

Key things to remember

Employers need to consider both a proactive and reactive approach to the impacts of COVID-19 on their workplace.

A proactive response involves developing reputable sources of information on the progress of the pandemic, beginning with the Commonwealth Department of Health at health.gov.au. Employers then need to urgently develop a plan for communicating with their workforce around the clock to inform them of health issues, employment matters and the continuity of the business. Whether they are ‘essential’ workers still attending the workplace, or employees working remotely from home, employers should keep them informed of the recommended standards of hygiene, the importance of social distancing, the signs to look out for of COVID-19 infection and what to do if an employee believes they are sick.

Perhaps the most important aspect of the employer-employee relationship at the moment, therefore, is open communication. The consequences of large-scale shutdowns across the economy and society is that many people will either have to work from home, take paid (or unpaid) annual leave or long service leave, be stood down until work can resume, or in the worst scenario, made redundant from the business.

Employers owe both their employees and third parties such as contractors and clients a duty of care in regards to their health and safety, including during the COVID-19 pandemic. This means employers need to carefully consider the legal framework in which they operate, including the terms in contracts of employment, workplace legislation, any internal policies and procedures, as well as relevant awards and enterprise agreements.

Telling workers they must attend the workplace, for example, or suggesting disciplinary action will be used if an employee doesn’t attend work could amount to a serious breach of the employer’s duty of care as well applicable health and safety legislation in each state. This would particularly be the case if an employee subsequently contracted the virus during the course of their work, exposing the employer to a potential workers’ compensation claim.

Should an employee be confirmed to have the virus, the employer must take immediate steps to advise and protect all other employees and third parties who may have had contact with the employee. This may also involve undertaking a deep cleaning of the workplace. But in notifying other parties about possible contact with a COVID-19-positive worker, employers need to carefully consider the employee’s right to privacy.

Employers should also be aware that if a visitor or other third party contracts the virus as a result of contact with one of your employees, your business may be the subject of a public liability claim by that person seeking damages for the injury.

Other important considerations

For the reasons discussed above, it is vitally important that employers keep a clear and organised paper trail of all decisions made at this time. This is imperative if later claims against you arise.

Employers also need to ensure they are on solid legal footing before making permanent employees redundant at this difficult time. Standing down employees is preferable to redundancy as businesses can ‘reanimate’ their workforce once the danger posed by COVID-19 has passed. The announcement of the Job Keeper package by the Federal government on March 30 (see below regarding eligibility) will also help employers avoid the difficult issue of redundancy.

Nevertheless, employers need to remain cognisant of the provisions of the Fair Work Act (FWA), where standing down workers without pay where the employee can’t be usefully employed is only valid under very limited circumstances. It’s unclear as yet as to whether a pandemic event which is beyond the employer’s control satisfies these provisions of the FWA so proceed with caution and seek legal advice.

Employers need to be aware that the statutory entitlements of employees remain protected despite being stood down or made redundant. Redundancy must still qualify as a genuine redundancy otherwise employers may be subject to a later adverse action claim by the employee.

Creative solutions around employees taking leave entitlements or even leave without pay in order to retain them as part of the workforce will be required of employers.

Job Keeper announcement

The Federal government’s announcement of a $1,500-a-fortnight Job Keeper subsidy on March 30 will certainly help many employers avoid the fraught issues around redundancy and staff stand-downs caused by the COVID-19 pandemic.

The package, designed to help employers keep staff ‘on the books’ for the duration of this event, requires certain eligibility criteria detailed below.

Eligible employers are businesses (including companies, partnerships, trusts and sole traders), not-for-profits and charities:

With a turnover of less than $1bn that have lost 30% or more of their revenue compared to a comparable period a year ago;
with a turnover of $1bn or more and with at least a 50% reduction in revenue compared to a comparable period a year ago.

Eligible employees are those:

Employed by an eligible employer at 1 March 2020;
who are sole traders, full-time, part-time, or long-term casuals employed on a regular basis for longer than 12 months as at 1 March 2020;
who are at least 16 years of age.
who are Australian citizens, holder of a permanent visa, a protected special category visa, a non-protected special category visa who has been residing continually in Australia for 10 years or more, or a New Zealander on a special category (subclass 444) visa.

In conclusion

The phrase “uncharted territory” has been used a lot to describe the COVID-19 pandemic. A necessary mass shut-down of the economy is clearly a crippling event for thousands upon thousands of businesses. But as a rule-of-law country, our legal structures and rules remain in effect and it’s incumbent on employers – while making fast decisions under pressure – to maintain a legal and ethical approach to what are essentially emergency procedures in order to avoid liability once the pandemic is over.

Felicio Law Firm is across the pressing employment issues involved in responses to COVID-19. We have broad experience advising NSW and Queensland firms on all matters of employment law so contact us today to assess your situation if you have urgent issues relating to the pandemic and its effect on your business and workforce. (02) 4365 4249 or admin@feliciolawfirm.com.au

Mar 31

Buying and Selling Property through a Self-managed Superannuation Fund

By Felicio Law Firm Conveyancing

Judging by the press it is getting, buying and selling property through a self-managed superannuation fund (SMSF) is all the rage. But before you jump on the bandwagon, it’s important to understand what you are really in for.

Rules, rules and more rules

The single most important thing to be aware of before you take the plunge is that there are lots of rules for making these transactions. Here are just a few:

You cannot buy and sell real estate through your SMSF trust deed unless it allows for such transactions.
An SMSF must have at least one primary purpose. It can also have secondary purposes, as long as the fund is maintained to fulfill them.
There are restrictions on ‘in house assets’.
You cannot live in or rent any property purchased on behalf of your SMSF.
No one related to you can live in or rent any property purchased on behalf of your SMSF .
You cannot take out a loan to buy property for the SMSF unless the superannuation fund trust deed allows it.

What does all of this mean?

Looking at the rules we’ve just listed, it’s easy to see that some are largely self-explanatory. However, some clearly warrant further explanation.

The so-called sole purpose test

Let’s begin with the concept of primary and secondary purposes for SMSFs. In most cases, an SMSF is established to provide retirement benefits for its members. If so, that is considered its primary purpose. A secondary purpose may be to provide benefits in case of illness.

So what does this mean if you want to buy real estate on behalf of your SMSF? Simply put, the purchase must be made to advance the fund’s primary and secondary goals. In other words, buying a rental property to generate income for the fund is fine. Buying a beachfront property to use as a second home, renting it out occasionally and keeping the income is not.

Provisions pertaining to in-house assets

Now let’s talk about in-house assets. An in-house asset is defined as any asset that a member or a member’s relative contributes to the fund. As a general rule, any such assets cannot account for more than five percent of the fund’s total value. However, there are always exceptions to this rule.

To clarify this further, let’s say your sister owns an investment property. You want to buy it and the two of you have settled on $250,000 as a fair price. Your SMSF has $500,000 in total assets. In this case, the investment property would be classified as an in-house asset. Assuming the sale went through, the property value would account for 1/3 of the fund’s total assets. In this case, the transaction would clearly violate the rule detailed above.

But now let’s say that you have your own business, and you own the property where it is based. Let’s also suppose that you want to transfer the property into your SMSF. Because the rule we detailed above does not apply to business real estate, this is theoretically fine. However, there is a catch. You must:

Lease the property from your SMSF under a written lease; and
it is a commercial lease.

Additional stipulations pertaining to borrowing

As we have already noted, there are also rules pertaining to borrowing in order to purchase property on behalf of your SMSF. Here are a few more things to keep in mind.

Your only loan option is ‘limited recourse borrowing’.
This type of loan only allows for the purchase of one asset.
It tends to carry higher costs.
You must use SMSF funds to repay the loan.
There are potential tax implications.
You cannot make any changes affecting the property’s ‘character’ until the loan is paid off.

But what about selling property?

Yes, it is also possible to sell property on behalf of an SMSF. Depending on your circumstances, you may even be able to sell it to yourself.

Let’s say for example, that you need to get rid of the property because it isn’t generating enough income to cover certain obligations. Now let’s say that you’re also planning on moving soon. One option may be to have the SMSF sell the property to you for fair market value so you can live there during your house hunt. There is an important caveat, however. This is that you must pay any and all applicable taxes.

The bottom line

To sum it all up, using an SMSF to buy or sell real estate is complicated. Therefore, it is important to get sound legal and financial advice from qualified professionals. If you are interested in buying or selling property through your SMSF, we are happy to provide the legal advice and guidance you need to make an informed decision. Contact our Erina Conveyancing lawyers today on (02) 4365 4249 or through our website to set up a meeting where we can discuss your needs.

Mar 24

What to do When a Loved One Dies in Queensland, What are the Next Steps?

By Felicio Law Firm Estate Planning

There can be a surprisingly long checklist of things to do when a loved one dies, particularly if they were elderly and lived a full life.

From sorting out their outstanding financial matters, be it bank accounts or government pensions, to cancelling utilities and closing social media accounts, it can be a time-consuming process to ensure your loved one’s affairs are finalised to reflect their passing.

One of the most important considerations, of course, is making sure their wishes are carried out in regard to their estate through the terms of their will, provided they made one. This is where the services of a legal professional with a background in wills and estates can prove invaluable in saving you time and stress.

What to do in the event of a loved one’s death

Many government agencies provide a checklist for people to follow as a guide in organising the affairs of a loved one once they pass. The Queensland government provides one here.

In the first 24 hours after death, this includes the basics of contacting a doctor (if they died at home), contacting family and friends, the preferred funeral director, and the executor/s of the will.

It’s important then to locate your loved one’s personal documents in order to ensure that any instructions they left are accurately carried out. This may include, for example, a pre-paid funeral plan, but also encompass documents such as birth and marriage certificates, property deeds, life insurance or superannuation policies, bank account details and their will.

Thereafter it remains to contact all of those agencies your loved one had regular interaction with, such as Centrelink, Medicare, their local council, their utility providers, phone and internet providers, clubs and professional associations, and anyone else you think needs to know that they are deceased.

If you’ve engaged a funeral director, they will officially register the death with the Queensland government and apply for a death certificate, which must be done within 14 days of your relative’s passing. You can also undertake these tasks yourself if you choose to make the funeral arrangements for your loved one, though it’s recommended you contact the government to ensure you follow the correct procedure.

Wills and probate

If you’re named as executor of your loved one’s will, you are responsible for carrying out its terms.

In some circumstances, such as when certain people or organisations holding assets that are part of your loved one’s estate will not release them, you may have to apply to the Supreme Court for probate. A grant of probate is the Court’s recognition that the will is legally valid and that you are the person authorised to deal with the estate.

It may be the case that you require other types of grants, too. Where your loved one’s will was valid and you are applying to administer its terms but are not the executor, you will have to apply for a grant of letters of administration of the will. In cases where your loved one failed to make a will, you may need to apply for a grant of letters of administration on intestacy.

The importance of legal guidance

Wills, estates, probate and intestacy can be a complicated area of law. Experienced, specialist legal advice will help smooth your path if the responsibility of any of these areas falls on you once a loved one dies.

Felicio Law Firm has many years of experience helping people sort through the numerous issues you can face when a loved one dies. We can make the process easier by acting both with compassion and efficiency to help you through a difficult time. Call us today on (02) 4365 4249.

Mar 10

What You Need to Know if You’re Buying or Selling Property in Queensland

By Felicio Law Firm Conveyancing

Buying or selling property is one of the most important transactions you can undertake in life. Besides the many hundreds of thousands of dollars involved, there is also the significance of the real estate asset as a family home, or an important income-producing investment. That’s why it’s important to get it right.

Below is a brief overview of buying or selling a property in Queensland. There are important legal requirements and repercussions all along the way during the purchase or sale of a property asset. The wisest course of action is to avail yourself of the services of a legal firm with experience in all aspects of such transactions, particularly the conveyancing of the property.

Buying a property

There are important legal considerations in three of the most common ways to buy property: at auction, off the plan, or through private treaty.

Auction: If you buy a property at auction it’s important to understand that if you’re the successful bidder, there is no cooling-off period. This means that you must settle the contract whether or not you have organised finance to pay for the purchase, conducted an inspection of the property, or then decide to change your mind.

The take-out is that you need to be prepared ahead of time. Make sure that before the day of the auction you:

Inspect the property;
get an independent property valuation (to ensure you don’t pay too much);
get your finance organised (based on the valuation);
get a copy of the sale contract;
get legal advice about the terms and conditions, in case you’re the successful bidder.

You should also try and find out from the agent for the property what deposit they will require if your bid is successful.

It should be noted that the cooling-off period also does not apply if, two days after bidding on the property at an auction in which you were a registered bidder, you enter a private treaty contract with the owner.

Buying privately: If you bypass real estate agents and agree to buy a property directly from a seller, ensure you have an experienced solicitor check any sale contract before you sign it. The contract should include a warning statement that provides for a five-day cooling-off period as well as a clause that indicates there will be a termination penalty of 0.25% of the purchase price if you, as the buyer, terminate the contract during the five-day period. You should also obtain an independent property valuation of the property and do your own research into the values of similar properties in the area. It is also up to you to arrange necessary inspections – building, swimming pool and pest – before signing the contract.

Off the plan: Buying a unit before it is finished has become a common occurrence in our big cities where there is intense competition for properties based on location. For a buyer, this means you are entering into a contract before the building is out of the construction phase and the title to the lot has been created.

As a result, a buyer needs to be wary of the risks involved. The seller needs to provide a buyer with a disclosure statement that provides essential details about them and you, as the buyer. It also needs to clearly identify the land or unit you are buying, including the proposed number, area and orientation of the lot. The statement should explain the proposed state of the lot at the time you will take ownership. As the buyer, you must sign and date the disclosure statement.

Legal advice should be sought before signing a contract, There are circumstances where you can back out of an off-the-plan contract, including ‘material prejudice’, where a change to the initial disclosure about the state of the land will cause you a significant disadvantage. Also check the contract for the terms of any sunset clauses, which place conditions and limits on the contract such as its cancellation by either buyer or seller.

Contracts of sale

When buying a property the contract should set out the price you are offering for the property; the details of how much and when you need to pay the deposit; and the time and date of settlement.

The contract is only binding once both the buyer and the seller have signed it. Be sure to have your legal representative see the contract before you sign it. The cooling-off period of five days applies to all residential property sales.

Once the contract is binding, you’ll need to pay the deposit within 2–3 days. If the sale is conditional, the contract might be subject to certain conditions such as the buyer organising finance, conducting a building and pest inspection, or finalising sale of their current property.

Selling a property

There is quite a lot to do when you decide to sell your property, from appointing a real estate agent (if that’s your choice) to sprucing up or renovating the property in readiness for sale. One of the most important tasks is engaging a legal professional with expertise in property transactions. They will make life a lot easier by drafting a contract of sale and help you complete any other disclosure documents. They can also help fix any difficulties with pre-settlement inspections, deal with settlement, and transfer the property title from you to the buyer.

Once a buyer makes you an offer for your property, the contract is only binding once you have both signed it. Before doing so you should be sure you can meet all your requirements under the contract, including passing on covenants and agreements to the buyer. Alternatively, you can reject the buyer’s offer by not signing the contract, or make a counter-offer.

A counter-offer is made by altering the contract to suit your terms and signing the updated document. The buyer can accept by initialling your changes, reject it or make their own counter-offer. Be sure to initial changes at every stage otherwise the contract may become invalid.

Any contract for sale should include the warning about the five-day statutory cooling-off period and the termination penalty of 0.25% of the purchase price if the buyer terminates the contract during the cooling-off period.

At Felicio Law Firm we have extensive experience and expertise in advising people whether they’re buying or selling property. Call us Erina conveyancing today on (02) 4365 4249 if you have any questions or to arrange an initial consultation.

Dec 18

What You Need to Know About Liquidation

By Felicio Law Firm Business Law

Incompetence. Mismanagement. Bad luck. Some combination thereof. There are lots of reasons businesses experience catastrophic financial difficulties. There are also lots of consequences, including liquidation. Here’s what all business owners should know about liquidation, and how it differs from the other repercussions of crushing debt.

What is liquidation?

To understand liquidation, one most first understand the concept of insolvency. A business (usually a company) goes into insolvency or becomes insolvent when its debt is such that the company is incapable of meeting past, current or future financial obligations.

Depending on the circumstances, insolvency can lead to receivership, administration, bankruptcy (generally applicable to individuals/sole proprietors) and liquidation. Each of these includes different protocols and mechanisms for the resolution of debt, which we will discuss briefly here.

Receivership

This happens when a secured creditor or creditors enlist the help of someone called a “receiver” to recover money owed.

The receiver’s job is to oversee the sale of any business assets and/or the business and the distribution of the proceeds to the secured creditors, followed by any unsecured creditors and other relevant parties in accordance with applicable rules. The receiver is also responsible for notifying the Australian Securities & Investment Commission (ASIC) about any related offences.

There are two things to keep in mind here. The first is that receivership can be implemented without a court order. The second is that receivership does not change the legal status of the company; your directors can carry on, but the scope of their power will be restricted.

Administration

Administration is similar to receivership, in that someone is recruited to put things right. This person is called an administrator, and he/she has two responsibilities. The first is to ensure that outstanding debts are paid and the second is to see that the sale of the business/business assets goes smoothly.

Depending on the situation, administration may result in liquidation or restoration of control to the company’s directors.

Bankruptcy

As we have noted, bankruptcy does not apply to companies. Instead, it applies only to individuals/sole proprietorships. Accordingly, it is carried out on a much smaller scale.

Instead of an administrator or receiver, a trustee is chosen to oversee the process. In this role, he or she may coordinate the sale of assets, secure your income for a given period for the repayment of debts, or secure property wrongfully given or ‘sold’ to someone else in an effort to prevent its sale for repayment of debts.

Another consequence of bankruptcy is placement of your name, along with a mark, on the National Personal Insolvency Index (NPII) for up to five years. The NPII is a widely accessible database that includes the individual/business names and addresses of anyone who has declared bankruptcy.

What happens when a business is ‘liquidated’?

Liquidation – the process whereby which the business is done away with and all of its assets are sold – usually applies only in the most dire situations. It includes the following steps:

The conversion of the company’s assets to cash (through sales).
Distribution of the proceeds to creditors.
Distribution of any remaining funds to shareholders.
Formal request to ASIC to remove the company from the register, thereby ending its legal existence.

You should also be aware that this process is carried out by someone called a liquidator and that it can happen after the business has gone through receivership and/or administration.

How to tell when liquidation is forthcoming

Insolvency – particularly liquidation – may be warranted when a business:

Cannot meet its monthly expenses;
cannot sustain fair market salaries for its employees;
can no longer afford to pay its taxes or make required contributions to employee superannuation;
cannot recoup sufficient funds from its debtors or ongoing work to meet the cash flow demands.

There are other warning signs that should also be taken into consideration. For example, liquidation may be imminent if your business is hemorrhaging so much money that the bank secures a mortgage on your home to ensure it can recover the amount owed. It may also be forthcoming if growing business debt prompts a creditor or creditors to obtain personal guarantees. Liquidation may be on the cards if your business continues to incur debt after it is declared insolvent and goes through receivership or administration. Finally, liquidation is likely inevitable if you (or any other director) receives a Director Penalty Notice from the Australian Tax Office that the company is incapable of paying.

Ignorance is not bliss

One of the more unfortunate aspects of human nature is our tendency to ignore unpleasant situations. But as we all know, wishing something away doesn’t work. If your business is facing financial difficulties, the best thing to do is seek advice from qualified legal and financial professionals as soon as possible. Our Central Coast lawyers is here to help so contact us by phone on (02) 4365 4249 or through our website, today.

Dec 10

What You Need to Know About Commercial Leases

By Felicio Law Firm Conveyancing

When it comes to the rental of commercial spaces, there is usually a lot at stake for everyone involved. The landlord is banking on finding the right tenant, ideally a viable business owned by a responsible person or entity that will have no trouble respecting the premises and paying the rent. Meanwhile, the tenant is counting on finding the right space in a convenient location that meets their needs and reflects their brand.

Here’s what all landlords and prospective tenants should know about commercial leases.

Classification of commercial property

To begin with it’s important to understand how commercial property is legally defined in New South Wales. It includes non-residential property such as:

office space;
industrial units;
workshops and warehouses;
storage sheds;
working yards.

You should be aware that retail space (located in a shopping centre or elsewhere) is also classified as commercial property. However, you should also be aware that retail shop leases differ from other types of commercial leases. This is because they are subject to specific rules and regulations designed to protect tenants from exploitation.

Negotiation of commercial leases

In most cases, landlords and prospective tenants are free to negotiate the provisions and stipulations in commercial leases. The only exceptions to this are retail shop leases, for reasons noted above.

With that being stated, the following provisions are usually included in commercial leases:

how long the lease will be in effect and options for renewal (if any);
terms for payment of rent, increases in rent and so forth;
allocation of responsibility for necessary maintenance, repairs, enhancements and structural changes;
the extent to which the tenant can make structural changes and enhancements in the space to meet its needs;
tenant notification and other requirements associated with the landlord’s ability to access/inspect the premises;
mechanisms for addressing tenant breaches and circumstances in which the lease can be terminated;
restrictions/limitations on the tenant’s ability to sublease the space (if applicable);
the tenant’s responsibility to leave the premises in reasonable/satisfactory condition when vacating the space;
stipulations pertaining to damages, liability for damages and related issues;
stipulations pertaining to renovation or redevelopment of the property;
requirements for security deposits and related matters; and
the process for dispute resolution.

Some other things to consider

With so much at stake for both parties, it is essential that the lease is prepared properly and accurately reflects the negotiated terms and conditions. This lessens the potential for costly and unpleasant misunderstandings or disputes.

The best way to ensure that the lease document is executed properly is to have a qualified lawyer prepare it (for the landlord) and review it (for the prospective tenant). In fact, the latter should be sure to have an experienced lawyer review the lease prior to signing it.

Another thing for landlords to consider is enlisting a real estate agent to identify potential tenants, negotiate the lease and manage the property if need be.

Prospective tenants should bear in mind that they may be responsible for lease preparation fees along with your own legal fees. However, this is not always the case, and you should not be afraid to negotiate this issue along with other relevant stipulations and provisions.

In any case, landlords and prospective tenants should not hesitate to seek legal advice prior to signing a lease agreement.

Don’t leave anything to chance – contact us today

The legal team here at Felicio Law Firm is fully versed in all aspects of property law. This means our highly skilled Central Coast conveyancing lawyers are well equipped to answer any questions and concerns you may have about commercial leases. We can also help with the preparation of lease documents for landlords, and review lease documents for prospective tenants.

For assistance with these and other property matters, you can reach us by phone at (02) 4365 6069, or by email at admin@feliciolawfirm.com.au.

Don’t leave anything to chance. Contact us Central Coast Erina conveyancing lawyers today.

Nov 12

What to Consider Before Moving into the Granny Flat

By Felicio Law Firm Family Law

It’s part of being a family that parents, children, siblings and other relatives willingly accommodate each other’s needs as life changes. Parents allow adult children to move back home after the loss of a job; brothers and sisters open their homes to one another when someone needs a place to stay after a job relocation. Children concerned about their ageing parents make room in their homes in a ‘granny flat’ arrangement.

The only trouble is that many of these accommodations are reached through informal agreements, leaving plenty of room for disputes, misunderstandings and wrecked relationships.

This is why it’s so important to consult a lawyer, whenever possible, before making these accommodations. We can help you draft agreements that everyone understands and agrees upon. Or, at the very least, we can give you the information you need to make an informed decision about the issue at hand.

With that being stated, here are a few things that older parents should consider before moving into a granny flat.

The legal classification of a granny flat

To have even a basic grasp of this topic, it is important to understand the legal classification of a granny flat.

For the purposes of a granny flat agreement, a granny flat is broadly defined as “a designated room or area that allows for a parent’s exclusive occupancy” created in accordance with a relevant agreement. This means it may be anything from a separate dwelling on an adult child’s property to a flat incorporated within an existing home. It could even be a loft room, duplex, or a room in an existing apartment.

What is a granny flat agreement?

A granny flat agreement is made when an adult child allows one or both of his or her parents to move into the adult child’s home.

The adult child generally makes this provision in return for some type of payment. Depending on the circumstances, this may include the transfer of the parent’s residence. In other cases, however, the parent/parents will provide funds for the construction of a granny flat at the adult child’s home. Because an older parent’s care requirements often prompt the consideration of a granny flat, provisions for such care may also be included in the agreement.

Although terms are predicated on individual circumstances and vary accordingly, a granny flat agreement must create a ‘granny flat interest’. In other words, there is a legal obligation for the transfer of assets or money to the person (adult child) who owns the property where his or her parent will live, in return for a life tenancy or interest in such property.

Specific considerations with regards to care provisions

As we have just noted, many granny flat agreements include provisions for an ageing parent’s care. However, such provisions are not mandatory.

Legally, a granny flat agreement can include simple provisions for the older parent’s accommodation without provisions for care. But if you are considering this option, you should be aware that it can cause long-term complications. This can happen if the parent/parents are still fairly spry when they first move in, but their health declines suddenly. Such an unanticipated turn of events can then create significant financial and emotional stress for everyone in the household.

Accordingly, everyone in the household should be informed about the provisions being considered and potential repercussions. In the interest of fairness and transparency, the adult child’s brothers and sisters should also be advised, even if they are living elsewhere. By consulting his/her other siblings, the adult child involved in the granny flat agreement can dispel any misconceptions about favoritism.

Within this context, lawyers often suggest that their clients allow all relevant family members to read and consent to the agreement. By doing so, they say, the adult child who is directly involved in the agreement can lessen the chances of future misunderstandings.

What about Centrelink?

Another issue that must be taken into account is how a granny flat agreement affects any Centrelink benefits, particularly where the elderly parent is on a pension. This is because the agency has a specific set of (complicated) rules pertaining to these arrangements.

Compliance with these rules ensures that there are no adverse effects on someone’s pension. But because lack of compliance or even a simple mistake can have serious consequences, it is important to get the proper legal and financial advice before entering into a granny flat agreement.

It is also important to consult Centrelink about relevant rules, especially if you have questions or need clarification. For example, there are some circumstances in which the gifting of assets or money may violate the gifting or deprivation provisions of the Social Security Act 1991 (Cth). But there are also some circumstances in which this is not the case.

A case where there’s no violation

There is no violation of the deprivation rules if payment for the granny flat interest is:

A transfer of title of the parent’s home;
covers the cost of the construction and fit-out of the granny flat;
a property purchased in someone else’s name.

Exceptions to the rules

Exceptions are made when Centrelink values the granny flat interest differently. This happens when the agency makes a determination based on ‘the reasonableness test’. In this method, the value is assessed at a different amount to what is actually paid for the life interest. It is typically used in the following circumstances:

When the home and additional assets are transferred;
when payment is made for construction and fit-out of premises and there is a transfer of additional assets;
someone is using the granny flat rules to enhance their social security benefits.

Tax implications

Tax implications must also be taken into account when considering a granny flat agreement. Why? Because some of these agreements may be subject to capital gains tax in accordance with an Australian Taxation Office ruling no 2006/14. This is most likely to happen when you, as a parent, pay your son or daughter a specific amount in exchange for the right to live in the latter’s home or to construct a separate granny flat there.

This may seem counter intuitive since our principal place of residence is usually exempt from any taxation implications, especially capital gains tax. Because this issue tends to generate so much confusion, we must reiterate how crucial it is for all parties involved in a granny flat agreement to seek advice from qualified professionals prior to finalising the agreement.

In summary

For adult children, providing a safe place for their elderly parents to live is a way of returning the love and care their parents have always provided. While it may seem simpler to make these accommodations without a formal agreement, doing so can often open the door for future family disputes. On the other hand, a granny flat agreement allows for specific provisions that everyone can agree upon.

As we have detailed, however, these agreements are not without complexities. If you are considering a granny flat agreement, we can help. Contact our Erina & Central Coast family lawyers at Felicio Law Firm on (02) 4365 4249 to learn how, today.

Aug 26

What You Need to Know About Debt Recovery in New South Wales

By Felicio Law Firm Business Law, Litigation

There are few more frustrating experiences for a company than chasing debts incurred by clients and customers. That frustration is compounded by how much time and money it can take to recover outstanding amounts owed to the business.

While many creditors are inclined to immediately threaten court action to enforce collection of what is owed, this course can prove costly and time-consuming, and should always be seen as a last resort.

Upfront communication with the debtor, payment plans, alternative dispute resolution and a letter of demand are all steps that could be taken to try and recover the debt before the matter needs to proceed to court. Below is some more detail on methods of debt recovery in NSW.

Preliminary methods of debt recovery

Ideally some honest communication with the debtor via phone, email or other means can resolve the issue. This is a process of investigation as to why the debt has not been paid and what is possible – such as instalments, a downpayment or some other payment plan – in order for the debtor to make headway in resolving the issue.

Should this means be unsuccessful, or the results uncertain, the parties might use alternative dispute resolution (ADR) as a way to reach agreement on debt repayment. So long as both parties are amenable, an independent third party can manage negotiations between them to find a mutual agreement on how to resolve the debt.

If ADR fails to recover the debt, most companies will proceed to a letter of demand. In general, this should be drafted after consulting with a lawyer experienced in debt recovery, and constitutes a formal request for payment which will detail the amount owing; the deadline for payment; and the consequences if payment is not forthcoming, including progressing to legal proceedings to recover the debt.

The court process for debt recovery

If the terms set out in the letter of demand are ignored, legal action can commence. A creditor must file a Statement of Claim with the relevant court in order to begin the legal process of debt recovery.

The size of the debt and its nature (business-related, personal, etc.) will determine which court hears the matter and also what the process will eventually cost.

The path to resolution is also complicated when a debtor raises a defence as to why they haven’t paid the debt. When this happens both parties will be required to submit evidence and attend a hearing in court.

Where a debtor does not file a defence, the creditor can apply for a default judgment where the court can order the debtor to pay back the money – known as a ‘judgment debt’ – without a hearing. Once ordered, a judgment debt can empower a creditor to take further enforcement action.

Creditors can begin enforcement proceedings at any time up to 12 years from the judgment date where debtors ignore orders of the court.

Types of enforcement

A creditor can seek court orders for a number of different ways to enforce debt recovery. These include:

Garnishee order: this orders a third party who holds money on behalf of the debtor, such as a bank, or someone who owes money to the debtor, to have money deducted and paid towards the debt amount.
Writ of execution: an order by which the sheriff’s office can seize and sell property of the debtor to pay off the creditor.
Writ for possession of property: directs the sheriff’s office to seize and sell property of the debtor in order to pay the creditor.

Additionally, when the debt is over $5,000 in NSW , a creditor may ask the court to declare the debtor bankrupt. Doing so may result in the debtor surrendering control of their money and other assets to a trustee. The trustee will then try to resolve the bankrupt’s debts.

Where a debtor is a company and the debt is over $2,000, a creditor may issue a statutory demand under section 459E of the Corporations Act 2001 (Cth) which requires the debtor to pay the debt within 21 days. This demand can be made with or without a judgment debt but it should be noted that to do so without may see the debtor challenge the demand on the basis that the debt is in dispute.

A debtor who fails to comply with a statutory demand leaves itself open to a creditor commencing proceedings to find it insolvent. Conversely, should the debtor have limited or no assets, this process may see the creditor never recovering the debt.

In conclusion

The various steps in trying to recover a debt can be complex and consume a lot of valuable company time. Moreover, different strategies apply depending on the amount and type of debt, and different time limits can also apply.

If you need advice on a debt recovery matter, contact our Central Coast Lawyers today on (02) 4365 4249 for an expert assessment of your situation and how we can achieve your desired outcome in a prompt and cost-efficient fashion.

Aug 15

What Happens if You Die Without a Will in New South Wales?

By Felicio Law Firm Estate Planning

It’s estimated up to 50% of people in NSW either don’t have a will or don’t have a valid will, meaning that should they die unexpectedly, they will be considered intestate and their estates distributed to surviving family members under the rules of the Succession Act 2006 (NSW).

This is not ideal. Most people would like to know that whatever they leave behind after their death – property, shares, heirlooms and other assets – will be distributed to loved ones in accordance with their wishes rather than the provisions of a government act, but this is not possible if they didn’t get around to making a will.

This article provides a basic outline of how an estate is divided in the event of a loved one dying without a valid will.

Who can inherit a deceased’s estate without a will in place?

There is a hierarchy of next-of-kin who stand to inherit a deceased’s estate in the event of intestacy. It begins with a spouse and then, where there is no spouse, the deceased’s children and grandchildren, parents, siblings, grandparents, aunts and uncles, cousins and finally, the state (where a person dies with no living relatives).

Where a person dies with a spouse but no children, the spouse may be entitled to the whole estate of the deceased. If the deceased leaves both a spouse and children behind, and the children are the children of the spouse, it is the spouse who may be entitled to the whole estate. If the children are not the children of the spouse, the spouse may be entitled to: the personal effects of the deceased; a statutory amount, adjusted for CPI plus interest; and one half of any remainder.

In the event that the deceased had multiple spouses, various other considerations will come into play as to how the estate will be distributed and expert legal advice should be sought.

Under the NSW law, a spouse is defined as the person the deceased was married to immediately before their death, or was in a ‘domestic partnership’ with. This latter relationship can include de facto relationships or an interstate relationship that is registered. For de facto relationships, the relationship must have been for a continuous period of two years or resulted in the birth of a child.

It should be noted that if the deceased owned property with someone else as a joint tenant, then that person will inherit the entire property.

What is the process when there is no will?

For an intestate person’s assets to be distributed when they die without a will, someone needs to be appointed as an ‘estate administrator’, who will take on the responsibility of distributing the estate in line with the intestacy rules.

Often the administrator will be a lawyer, a financial planner or someone else trusted by the deceased (where possible), who needs to apply for a grant of administration from the court. This grant will allow them to reconcile matters related to the deceased’s estate – such as any unpaid debts, taxes, funeral expenses, etc – by withdrawing the deceased’s funds, before distributing what remains of the estate.

In simpler cases where the deceased left few assets and has a single spouse to inherit his or her estate, a grant of administration will not always be needed. The same applies if those likely to inherit from the estate can come to agreement on how best to distribute the assets.

Applying for a grant of administration can be time-consuming, involving a lot of paperwork and background research in order for the deceased’s estate to be properly distributed.

For this reason it is recommended to seek the guidance of legal professionals with a background in wills, estates and intestacy, such as the experts at Felicio Law Firm. Call us today on (02) 4365 4249.

Aug 06

What You Need to Know About the Conveyancing Process in NSW

By Felicio Law Firm Conveyancing

Conveyancing might seem like one of the less exciting aspects of buying or selling a property but it is a crucial and essential element of the process.

It can also be somewhat of a mysterious exercise, particularly if you’re a first homebuyer. The steps involved in conveyancing – the legal process involved in transferring a property from one person to another – is outlined below.

A smooth transfer is always the desired result, but this requires proper adherence to the process, including filing the correct documentation at the correct times. This process is made much easier when you consult a law firm experienced in conveyancing matters.

Before the contract of sale is signed

Say you’re the seller (or vendor) and have found a buyer for your property. The first step of the conveyancing process is the need to have a draft contract for the sale drawn up by your solicitor. You will also need to fill in and sign a number of legal forms from various government departments and source (or have your legal representative/conveyancer source) certain information to ensure the title deeds are in order; to detail any charges still owing on the property that may affect the sale; to prove the rates and charges are fully paid and up to date; and to detail whether any other restrictions (such as environmental regulations) exist over the property.

Sellers need to be aware this pre-contract stage can take a couple of weeks to complete. Once it is and all other terms such as the price are agreed with the buyer, both parties will need to sign the prepared contracts and proceed to the exchange stage.

Exchanging property

Once this process commences, the contract for sale becomes binding on the buyer and seller. Those managing the process for the seller meet with the representatives of the buyer to confirm the documents are the same and exchange the signed contracts. The contract is now legally enforceable and it is incumbent on both the seller and the buyer to comply with its terms or face certain financial penalties.

While binding, most contracts will also include a five-day cooling-off period (unless purchased at auction or, if the buyer is satisfied with the pre-contract negotiations, waived altogether). In this period the buyer can change their mind and cancel the contract, but by doing so they forfeit 0.25% of the purchase price to the seller.

If after signing the contract the buyer discovers some ‘adverse’ matter which affects the property, such as a new council regulation affecting development options, for example, they may have grounds to exit the contract. To do this the buyer will need to show the seller failed to disclose the adverse matter and also that they were unaware of the matter and would not have signed the contract had they known about it.

From the moment the contract is signed, its settlement will generally occur within six weeks or another period agreed to and set out in the contract. The buyer will also need to pay stamp duty within 90 days of the contract date or prior to settlement (unless a recipient of a first homebuyer’s grant or if buying off the plan).

Settlement

This final stage in the conveyancing process sees the buyer takes possession of the property and all remaining financial matters between the parties are finalised.

Before they take possession of the property, a buyer may conduct a pre-settlement inspection. If the property is to be sold with vacant possession, the seller will need to make arrangements to vacate the premises before settlement. The seller should empty the property of all possessions and leave it in a clean and tidy condition.

If it’s discovered there are any remaining issues regarding the property, settlement can be postponed until the seller addresses them but the contract itself, at this stage, can’t be terminated.

Ahead of the agreed settlement date, the buyer will need to organise the financial arrangements for payment of the seller. At an agreed time and place, the legal representatives of the buyer and seller will meet. The buyer will then pay the balance of the property’s purchase price, authorising the agent to release the deposit minus the agent’s commission. The seller then has to give the buyer the executed transfer document and title documents. Before this can happen, any existing mortgage over the property must be paid off and any caveats lifted.

The exchange must also be registered with NSW Land Registry Services in the new names of the buyers. If the buyer has borrowed to fund the purchase, the lender will instead take the deed, register the transfer, and then hold the deed until any mortgage loan is paid out. Provided all the documentation is in order, the keys and other access devices to the property will then be handed over.

It should be noted that the services of a conveyancer mean neither the buyer nor the seller need be present at this settlement stage.

The place of insurance

If there is an insurance policy covering the property, sellers are advised to keep their coverage until settlement is completed and then contact their insurance company if the cover is no longer required.

This is because the risk of damage to buildings or other fixtures remains with the seller until after settlement, unless the contract states otherwise. This means that any damage to the property after the exchange of contracts can give a buyer grounds to get out of the contract by giving notice in writing within 28 days of becoming aware of the damage.

Conveyancing can sound like a complex and drawn out process but it can be made much simpler by engaging trusted representatives who are experienced in this area. While you decide the big issues like price, financing and any restrictions over the property, they will do the legwork on documentation and timelines to ensure the transfer of property is as smooth as possible.

At Felicio Law Firm we offer a ‘Fixed Fee – No Ifs or Buts’ pricing structure (dependent on the property type) for all conveyancing matters, with many years experience in the process from contract to settlement on residential, rural, commercial, strata and industrial properties. Call Our Erina Conveyancing lawyers team at Felicia law firm can assist you with sound legal advice today. on (02) 4365 4249.

Jul 25

Marriage Divorce Separation Existing Will

What is the Effect of Marriage, Separation or Divorce on an Existing Will?

By Felicio Law Firm Estate Planning

Once you’re of age and working, making a will – or what lawyers refer to as ‘estate planning‘ – is a highly recommended course of action to ensure your wishes are carried out in the event of your death.

But the terms of a will are necessarily complicated once you marry or, later on, separate or divorce. Various pieces of government legislation have further complicated the picture, meaning expert legal advice is strongly advised when it comes to making, amending or updating a will.

How does marriage impact the terms of a will?

If you have a will and then decide to get married, that will is revoked once you exchange vows. The exception to this is if you make a will in the “contemplation of marriage”. That is, you decided to make a will to cover the circumstance of gaining a beneficiary (or beneficiaries) in the form of your new spouse.

A law change made on March 1, 2008, will also provide an exception to the ‘revocation-on-marriage’ will provision. If you got married on or after that date, any terms in your will which provide a benefit to your spouse, or any appointment of them as an executor or trustee of the will, or as a guardian (of children, for example) remains in place, though the will is otherwise revoked.

If you die and didn’t manage to update a will that was made before March 1, 2008, then you may be partially intestate depending on the terms of the will at the time you married. In this case, your spouse will likely be able to claim most if not all of your estate and a state’s intestacy laws will determine who is entitled to anything not left to your spouse in the will.

How does separation affect a will?

On its own, separating from your spouse has no effect on your will but as noted above, your now ex-spouse will have the largest claim on your estate should you die before you divorce. For this reason, legal experts in estate planning recommend you always update or amend your will if your separation from your spouse looks like it is permanent.

What happens if we then divorce?

Various changes to relevant legislation over the years affect the impact of divorce on your will. If you were divorced in NSW before November 1, 1989, the will you had in place at the time of that divorce is unaffected and your ex-spouse is entitled to any gift in your will, unless you specifically revoked or updated the document.

If you were divorced after the above date, any terms in the will in favour of your ex-spouse, or any appointment of them as an executor or trustee in your will, are revoked. The further law changes in 2008, however, mean that if you were divorced on or after March 1, 2008, and your ex-spouse appears in your will as a trustee for beneficiaries such as any children from the relationship, then your ex may still act as trustee despite the divorce.

Same-sex couples

The passing of legislation enacting marriage equality in Australia in December 2017 has complicated the legal picture around same-sex couples and their wills.

Many couples married overseas prior to the Australian law changing, subsequently making their unions legal in Australia. Expert legal advice should be sought to determine the validity of wills made by couples who were legally married overseas prior to the recognition of marriage equality in Australia and made a will after this time, particularly if it includes beneficiaries other than their spouse.

As this article demonstrates, the legal landscape when it comes to the impact of marriage, separation and divorce on estate planning can be complicated. It involves different pieces of legislation with different dates before or after which certain aspects of a will are valid or not. In this case, contacting a law firm with proven experience in estate planning matters such as Felicia Law Firm is a wise course of action. Contact us today on (02) 4365 4249.

May 30

Relationship Stability Vs Assets Security

By Felicio Law Firm Family Law

Today, it is more common than not for couples to live together prior to getting married.

In fact, in Australia alone, about 80% of couples conduct this, potentially being able to ‘try before they buy’.

However, financial consequences regularly arise from this, as couples who have lived together longer than two years become susceptible to the possibility of their assets being claimable, as if they were already married. A recent article by the Daily Telegraph on 19 June 2017 ‘Reason at Romance’s Heart’, pronounces this very idea as it involves the comingling of you and your partner’s money which can easily result in a loss of assets. Due to this, preparation is key, as all individuals need to consider their options on the possibility their relationships may fall apart.

To protect your assets, lawyers suggest that it’s best to develop a thorough and effective asset protection strategy long before the possible need for it. This will enable you to have a safety net to fall back on if anything goes wrong within your relationship for the future. This can be implemented by a few tips and tricks outlined by the following.

Protecting your assets:

In any relationship, the ultimate way in protecting your assets that you bring to the table should always begin with a record keeping and valuation at the time your relationship begins. This forms as a base level to be financially secure and provide protection of your and your partner’s individual assets. Co-habitation agreements are a common way to outline a relationship, property rights and liabilities between a couple. They act as a basic pre-nuptial promise for couples to create in an effort to protect each party’s distinct assets.

Housekeeping expenses:

Budgeting financial housekeeping can also maintain independence within a relationship. Household budgets are vital when living with your partner, particularly if separate bank accounts are to be upheld. This will reflect each partner’s responsibility and can act as a common test for compatibility, as you will not be bound by each other’s expenses. Finding out that your partner is a compulsive gambler if you are a savvy shopper could lead you to decide to end the relationship and having kept your finances separate, you have a better chance to keep your assets.

Property pathways:

Owning a property and the decisions relating to this are extremely important in any relationship. The two distinct types for couples involve ‘tenancy in common’ or ‘joint tenancy’ and the difference could potentially impact you and your relationship. These two choices provide entirely different outcomes if a relationship, unfortunately, breaks down and therefore, can impact on your assets and financial protection. ‘Tenancy in common’ allocates each partner the direct ownership of a designated portion of the property, where each individual will be accountable for their own mortgage and own share of the property. On the other hand, ‘Joint Tenancy’ involves the agreement that a couple is jointly and severally responsible for the entirety of the property and mortgage. When renting, by adding your name to the lease you gain equal possession of the space and opportunity allowing for a better financial position if it comes down to the event of a break-up. If your name is not on the lease and the unfortunate event of a breakup unfolds, the person with their name on the lease has an upgraded position to continue possession of the rental property.

Personal Budgets and their impacts:

Before you or any couple agrees to rent a house or apartment together, you should consider creating an individual budget for all monthly bills, utilities and individual expenses to be conducted whilst living together. Alongside this, by purchasing items separately you utilise your ownership and possession of certain items within the relationship, therefore, recognising who owns what particular piece of furniture etc. In doing this, both parties can understand and respect their own contributions and ownership of items, in the preparation for any unfortunate event.

Talk about it!

Lack of communication regarding any finances in a relationship may result in money problems and lead to breakdowns. It is encouraged that all couples allocate time to talk about money with their partners and understand each other’s goals, plans and monitoring of finances. This will consequently ensure both individuals are on the same page and allow issues to be raised for any discussion. Warning! Do not fall into the trap where one partner controls all finances and decisions in a relationship. This is the biggest NO NO in being able to protect your assets and individual security. Money matters should be a joint decision in any relationship, providing stability and security to your asset management.

Our Felicio law firm team are here to help you with Financial Agreements (before, during and after marriage) contact our Erina & Central Coast family lawyers today.

May 30

Commercial Law – Uncovering Unclaimed Money

By Felicio Law Firm Business Law

Commercial law is also known as the area of Business and Corporate law.

This aspect of law focuses on commerce, trade, sales alongside individuals and businesses who conduct particular financial activities. At Felicio Law Firm, we will support you in navigating and addressing issues you face in respects to your business affairs.

Uncovering Unclaimed Money

Do you have unclaimed money waiting to be retrieve in an account somewhere?

In Australia alone, there is over $1 Billion dollars’ worth of lost money waiting to be claimed by its rightful owner at any given time. This is due to the fact that the money has become unclaimed for a number of years. Keeping track of different accounts from superannuation, shares, insurance policies, bank accounts and investments can be quite hard, however if not tracked properly, it can lead to the result of your own money becoming unclaimed and lost.

When money in these accounts convert as unclaimed, the funds are then paid to the Australian Securities Investments Commission. Once unclaimed money is received by the ASIC, it is then transferred to the Commonwealth of Australia Consolidated Revenue Fund where the legitimate owner can request for the money at any given time.

Felicio Law Firm is a registered agent to the ASIC, and we able to conduct the lodgements and searches for any unclaimed money in Australia linked to you. We will be able to assist you in finding unclaimed money you may have lost, and conduct the correct procedure in claiming this money back for you.

May 07

What Does Same-Sex Marriage Mean For Property Proceedings?

By Felicio Law Firm Family Law

In more than two dozen countries including Australia, the legalisation of same-sex marriage represents a significant legal milestone.

Because the legislation has only been in effect in Australia since December 2017, a key question that remains largely unanswered is how the legal recognition of same-sex marriages in Australia will affect property proceedings.

This is important because the changes to Australian laws that permit same-sex marriage here also allow for the recognition of same-sex marriages that took place overseas. In other words, a gay or lesbian couple that wed in a country that had legalised same-sex marriage prior to 2017 and is now living in Australia will also be treated as a married couple under our laws. And depending on each couple’s situation, that can be complicated.

Let’s say, for example, that a couple married in a foreign country which legalised same-sex marriage 10 years ago. After living there for a couple of years, the couple returned to Australia but were never officially divorced, because their marriage was not legally recognised here at the time. If they were to now be married under Australian law, this would actually be a second marriage in the eyes of the law.

Under applicable laws, namely 88D(2) of the Marriage Act, the second marriage is voided once someone enters into a second valid marriage. This means that a couple in the circumstances detailed above may be forced to abide by the de-facto provisions of the Family Law Act instead of the marriage provisions.

Changes to the Family Law Act that took effect in 2008 authorised the Family Court to change property interests for same-sex couples who are in ‘de facto relationships’, effectively putting them on equal footing with heterosexual couples in the same legal classification.

Even so, initiating property proceedings is a little bit harder for these couples. This is because they have to meet a higher burden of proof to verify that they are, or were, in this type of relationship. For example, they must prove that they lived together (prior to separation) and had some degree of mutual financial dependence. On the other hand, the existence of a valid marriage is the only evidence a court needs to find that a married couple shared joint property interests.

Another factor to consider is that married couples have one year (12 months) in which to initiate property proceedings in court after the issuance of a divorce order. Conversely, de-facto couples must initiate property proceedings in court within 24 months (two years) after they have legally separated.

Because they have generally separated without the Court’s help and without applying for an official divorce in the country in which they were married, stipulations pertaining to these deadlines may also affect same-sex couples. The good news, however, is that the Court already has a framework for addressing this dilemma. This is because it comes across similar issues when separated heterosexual couples have procrastinated before filing for divorce, and then make court applications for property settlements several years after their legal separation.

To date, the Court hasn’t had to decide how the recognition of past same-sex marriage will affect the implementation of these deadlines. However, it does have the authority to decide whether a case should be dealt with by a judge on an individual basis, based on its evaluation of whether Court intervention is fair and just.

If you are a gay or lesbian couple that wed in another country and you are now living in Australia, it is important that you fully understand how legal recognition of same-sex marriage affects you.

Felicio Law Firm can help you with this complex and still emerging area of the law, contact our Erina, Central Coast family lawyers today.

Apr 16

Our Memberships – Law Society of New South Wales

By Felicio Law Firm General News

Felicio Law Firm is a Member of The Law Society of New South Wales.

What does this mean for our clients?

The Law Society is responsible for assisting all solicitors in the state deliver services that are of the highest professional and ethical standards. Read more here on their site regarding ethics and costs.

Law Society NSW Member

Apr 09

Litigation Guardians – When Is It Appropriate?

By Felicio Law Firm Estate Planning, Litigation

One of the most common misconceptions about hiring a lawyer is that he or she will be solely responsible for making all of the decisions about your case both before and during any litigation.

It is true that your lawyer is legally and ethically obligated to provide the best possible legal advice and act in your best interest but provided you are making sound decisions based on the information he or she provides, your lawyer must also follow your instructions.

But what happens if you aren’t capable of telling your lawyer what to do? If you’re incapable of doing so because you’re under 18 years of age or disabled, the court will appoint someone called a litigation guardian to act on your behalf. In other words, this is someone who will effectively ‘step into your shoes’ to assess your best interests and instruct your lawyer accordingly.

To be selected as a litigation guardian, someone must:

be an adult;
demonstrate that he or she does not have any interest in the case that is opposed or potentially harmful to the interest of the person in need of his or her services;
be able to act fairly and competently;
consent to being a litigation guardian under applicable laws.

In some cases, relatives or other concerned parties will ask a lawyer to act as a litigation guardian. This is because a knowledgeable, experienced lawyer can act with a certain degree of objectivity and professionalism.

More often than not, the litigation guardian is a relative, friend or caregiver. Barring that, the court may select someone who does not personally know the person requiring a litigation guardian. In either case, the person chosen to fill this role must become familiar with the person’s situation and issue instructions that reflect their charge’s best interests.

Litigation guardians are generally appointed in the following types of cases:

Personal injury;
a criminal compensation application;
various matters related to Wills;
family provision applications.

A litigation guardian must be selected to represent someone in any Federal Circuit Court matter in which that party is incapable of understanding the proceeding or its potential consequences; or is incapable of fulfilling his or her legal obligations. Applicable court rules dictate that a minor must have a litigation guardian unless the court orders otherwise.

In accordance with Family Law Rules, a litigation guardian in the Family Court is known as a ‘case guardian’. In any Family Court matter a person who is legally classified as a child or is otherwise incapable of instructing his or her attorney, and/or fulfilling his or her legal obligations, must have a case guardian in order to initiate, continue, respond to, or intervene in proceedings. The only exception to this rule is if the court finds that the child not only comprehends the nature and possible consequences of the case, but can also make certain decisions and meet his or her legal obligations.

There are several methods for appointment. Someone can simply apply to be appointed a litigation guardian or case guardian. In certain circumstances, the court may ask the Attorney-General to nominate a litigation guardian or case guardian. The court may also make its own motion for appointment of a litigation guardian. It may also remove or replace a litigation guardian.

Once the appointment is finalised, the litigation or case guardian must advise all other relevant parties about it in writing.

A newly-selected litigation guardian or case guardian must also abide by applicable court rules. Furthermore, he or she must do everything ordinarily required of a party to the litigation. Finally, he or she may also do anything that the party to the litigation would ordinarily do for his or her own benefit.

As we have already noted, a litigation guardian must obtain proper legal advice. In this context, he or she must duly consider any proposals for resolution of the case, such as participation in alternative dispute resolution.

In accordance with a relevant court order, any costs incurred by the litigation guardian are paid by a party to the litigation or from the income or property of the person that he or she represents.

To learn more about how to be appointed as a litigation guardian or any related issues, contact our Central Coast lawyers today.

Mar 01

Conveyancing | 14 Resort Drive, Hamilton Island

By Felicio Law Firm Conveyancing

Conveyancing@ERINA is a new Central Coast business initiative created to serve a need in the market for streamlined, cost-efficient conveyancing.

A ‘Fixed Fee – No Ifs or Buts’ pricing structure is offered to ensure you understand the total cost to complete your property transaction. Different fees apply according to the type of property being sold or purchased. These may include a block of land, a residential home, a unit in a strata complex, a business premise or commercial unit in a retail or industrial precinct, a rural lot in a subdivision or a unit in an aged care facility

Felicio Law Firm

The onset of the COVID-19 pandemic has severely disrupted all our lives. Workplaces have shut en masse, as have entertainment venues, most shops and – other than for the children of emergency workers – schools as well.

What is the impact on parenting arrangements?

Do child support payments continue?

The status of court proceedings

Communicate and adapt

Key things to remember

Other important considerations

Job Keeper announcement

In conclusion

Rules, rules and more rules

What does all of this mean?

The so-called sole purpose test

Provisions pertaining to in-house assets

Additional stipulations pertaining to borrowing

But what about selling property?

The bottom line

There can be a surprisingly long checklist of things to do when a loved one dies, particularly if they were elderly and lived a full life.

What to do in the event of a loved one’s death

Wills and probate

The importance of legal guidance

Buying a property

Contracts of sale

Selling a property

What is liquidation?

Receivership

Administration

Bankruptcy

What happens when a business is ‘liquidated’?

How to tell when liquidation is forthcoming

Ignorance is not bliss

Classification of commercial property

Negotiation of commercial leases

Some other things to consider

Don’t leave anything to chance – contact us today

The legal classification of a granny flat

What is a granny flat agreement?

Specific considerations with regards to care provisions

What about Centrelink?

A case where there’s no violation

Exceptions to the rules

Tax implications

In summary

Preliminary methods of debt recovery

The court process for debt recovery

Types of enforcement

In conclusion

Who can inherit a deceased’s estate without a will in place?

What is the process when there is no will?

Before the contract of sale is signed

Exchanging property

Settlement

The place of insurance

Once you’re of age and working, making a will – or what lawyers refer to as ‘estate planning‘ – is a highly recommended course of action to ensure your wishes are carried out in the event of your death.

How does marriage impact the terms of a will?

How does separation affect a will?

What happens if we then divorce?

Same-sex couples

Today, it is more common than not for couples to live together prior to getting married.

Protecting your assets:

Housekeeping expenses:

Property pathways:

Personal Budgets and their impacts:

Talk about it!

Our Felicio law firm team are here to help you with Financial Agreements (before, during and after marriage) contact our Erina & Central Coast family lawyers today.

Commercial law is also known as the area of Business and Corporate law.

Uncovering Unclaimed Money

Felicio Law Firm can help you with this complex and still emerging area of the law, contact our Erina, Central Coast family lawyers today.

Felicio Law Firm is a Member of The Law Society of New South Wales.

To be selected as a litigation guardian, someone must:

Litigation guardians are generally appointed in the following types of cases:

To learn more about how to be appointed as a litigation guardian or any related issues, contact our Central Coast lawyers today.

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